Lax enforcement of Title IX in campus sexual assault cases

Introduction

It took nine months in 2005 and 2006 for the University of Wisconsin at Madison to contemplate, then reject filing disciplinary charges against a crew team member accused of rape.

Enough time for the accused student to start his fourth year at the university, compete in another rowing season, and glide into another spring as a celebrated college athlete. Enough time, too, for an enraged encounter with his accuser, Laura Dunn, at a fraternity party. “He started threatening me,” said Dunn. “When he hit the wall, he used his whole forearm, and just slammed within inches of my head.”

The university said a police investigation and the alleged victim’s objections to one of her investigating officers accounted for the delay. The criminal investigation, too, ended without charges against the accused student, who said Dunn willingly participated in sexual activity.

Unsatisfied with the school’s response, Dunn hoped to find an ally in the U.S. Department of Education’s Office for Civil Rights. The office, referred to as OCR, enforces Title IX, a federal law requiring “prompt and equitable“ action in response to reports like Dunn’s. The statute is intended to protect students’ right to an education without the hostility of sexual harassment or assault. But in a decision that left her feeling betrayed again, the enforcement agency said it found “insufficient evidence” that the University of Wisconsin had been less than prompt.

The university’s explanation for taking nine months was “reasonable” and it took “interim steps” including a no-contact order “to protect and prevent harassment” of Dunn, OCR found. The school ultimately cited a lack of eyewitnesses and the role of alcohol in deciding not to file disciplinary charges against the accused student.

“I really expected for an organization that puts civil rights in their name to understand,” said Dunn. “It was pretty devastating.”

OCR is the primary office overseeing colleges’ response to rape and other forms of sexual assault, but in reality, it does not investigate many cases like Dunn’s. Too few students know they have the right to complain, say advocates for alleged assault victims. A Freedom of Information Act request filed with the Department of Education yielded at least 24 fully resolved investigations between 1998 and 2008 into allegations that colleges and universities botched sexual assault cases. That’s about two a year, on average. And violations of Title IX were found in just five cases in 11 years. None of the schools were punished, however — even when OCR found that colleges had acted indifferently or even retaliated against students who reported that they had been raped or otherwise sexually assaulted on campus.

OCR officials have said punishing schools is unnecessary and impractical; an ultimate potential penalty of rescinding federal funds is enough to scare schools straight with a few well-placed words. By law, OCR has few tools for intermediate sanctions; it can’t issue fines, for instance. It can refer cases to the Justice Department for litigation, but hasn’t needed to, officials have said, because schools naturally fall into line once they are investigated. But critics see it differently. They say OCR’s enforcement of how schools handle Title IX cases involving alleged sexual assaults is overly friendly, which ultimately lets colleges — and rapists — off the hook.

The Office does not routinely make public its investigations into colleges and universities accused of mishandling sexual assault reports. Through a FOIA request, the Center for Public Integrity received the results of 210 Title IX campus sex discrimination investigations, which included allegations of other forms of sexual harassment, like inappropriate comments or touching by professors, and grade discrimination, as well as sexual assault. The Department of Education provided findings only for cases in which investigations and any follow-up monitoring were complete.

Russlynn Ali, who was appointed last year to head OCR, painted its modest enforcement history as a remnant of policies pushed by the Bush administration, and said that the Obama administration would be more aggressive in enforcing Title IX in sexual assault cases.

“I certainly can’t speak to the decisions made in the past,” said Ali. “I can, though, commit to you that where universities or school systems don’t comply with civil rights laws, where they are unwilling to look to find a resolution … we will use all of the tools at our disposal including referring to Justice or withholding federal funds or going to adjudication to ensure that women are free from sexual violence.”

Critics contend that until now, the message to college administrators has been a starkly different one.

“A smart and savvy attorney tells them, ‘You don’t have to do jack squat,’ ” said Sarah Dunne, legal director of the American Civil Liberties Union in Washington state, and a former attorney for the Civil Rights Division of the Department of Justice. “ ‘They’re not going to go after you.’ ”

When Dunn left the crew team, she asked the university to inform her coaches and the athletic department of her rationale. She describes the administrative reaction.

Laura Dunn was a member of the crew team, too, during her freshman year at the University of Wisconsin. She left the next year after the alleged rape by two teammates, she said, made the already-slender athlete lose weight and sleep. But even as her crew career fell apart, she didn’t report anything to campus authorities for more than a year. Many so-called acquaintance rape victims are slow to identify what happened as assault despite profound personal consequences, and Dunn says she was one of them.

At the root of Dunn’s OCR case was anger at the way the university responded to her report. Her teammates assaulted her, she said, while she drifted in and out of consciousness after drinking heavily at a crew party in April 2004. (The second alleged attacker had already graduated by July 2005, when she reported the assault.) The two accused men, who did not respond to the Center’s calls for comment, told a campus police investigator that she was flirting with them, and initiated a sexual threesome.

The first student affairs dean assigned to look into her report left the job; the second one was reassigned after Dunn expressed concerns about her methods. It wasn’t until April 2006 that Assistant Dean of Student Affairs Suzanne Jones, the third investigating officer, made the final decision not to pursue disciplinary charges against the remaining student. She never formally interviewed either of the two men, or read the police file in the case before deciding not to take any action against the fourth-year athlete, according to OCR’s investigation.

Jones said “she was not pursuing the matter because there were no eyewitnesses other than [the three students involved],” according to a letter documenting OCR’s findings. She added that the two students still attending the university “were not clear on what happened … and that alcohol played a part in their lack of clarity.”

When contacted by the Center, Jones declined to say more than “a lot of it is totally incorrect.” She would not clarify what she meant.

To Dunn, it seemed that the school had just run down the clock on her case, waiting until the end of the year to drop it without a thorough investigation.

Seeing no other avenue for recourse, Dunn took her story to a local newspaper. That was how S. Daniel Carter, public policy director of Security On Campus, Inc., a safety advocacy organization, learned of the incident, and he e-mailed Dunn about her rights.

Title IX was passed in 1972 to prohibit discrimination based on sex in federally funded educational activities, and in 1980 was put under the oversight of the newly created Education Department’s Office for Civil Rights. The law is widely associated with disputes over gender equality in athletics. It makes no mention of sexual assault. But its regulations call for grievance procedures providing “prompt and equitable resolution of student and employee complaints” of discrimination on the basis of sex.

A 1999 Supreme Court decision established that a school could be held liable under Title IX for failing to address student-on-student sexual harassment, including assault. The decision underscored the rights of students who believed that their rape reports had been mishandled, causing them to drop out of school or otherwise miss out on educational opportunities.

But little has been done to make students aware that they have these rights, say advocates. The option to file a federal civil rights complaint after a college allegedly fumbles a rape report, said Carter, “is not widely known among the victims. It is also not known among rape crisis advocates, and it is also not known by lawyers.” And the window of 180 days OCR gives students to file a complaint often passes before they find out about it.

As a result, the number of investigations into sexual assault-related cases is “shockingly low” said Diane Rosenfeld, who teaches a class on Title IX at Harvard Law School, especially considering the hefty estimated percentage of female students — one in five, according to a Justice Department-funded study — whose college educations are disrupted by rape or attempted rape.

Still, OCR investigations have catalyzed policy changes on several campuses, including some directly related to Title IX’s requirement that colleges be “prompt” in responding to sexual assault — Dunn’s major complaint.

In 2006, OCR’s New York office found that the Metropolitan College of New York violated Title IX’s requirement for “prompt” resolution because of a one-month delay in investigating a rape report. In 2004 and 2007, other regional offices cited Oklahoma State University and Temple University, respectively, for failing to designate any time frame for investigation of sexual assault.

All agreed to overhaul their policies to comply with Title IX. Temple University also promised to provide counseling and other services to the student who had complained.

Dunn filed her complaint with the Chicago regional office in August 2006. The office initially declined to investigate, saying it wasn’t within OCR’s jurisdiction because the alleged rape took place off campus. She appealed with the help of Security On Campus, Inc.

“UW … acted with deliberate indifference,” wrote former Security On Campus, Inc. legal advocate Alice Purple. “The harassment that Ms. Dunn was forced to undergo was so severe, pervasive and objectively offensive that it deprived her of educational benefits by forcing her to quit the crew team and causing her grades to fall.”

When the regional office finally agreed in March 2007 to take up the complaint, Dunn was optimistic that OCR would agree with her. After all, nine months was equivalent to an entire academic year: How could that possibly be prompt?

Few violations

But a review of 11 years’ of completed OCR investigations shows findings of violations to be the exception rather than the rule in cases alleging mishandling of sexual assault reports.

Some of OCR’s findings paint a portrait of college processes gone badly awry, with what seem to be devastating consequences for alleged victims. But no Title IX violations are identified. In 2003 for example, OCR’s Boston office found it “troubling” that Boston University had distributed a press packet with information about an alleged rape victim, noting that she was fined for “disorderly conduct” and drinking alcohol on the night she was allegedly raped. But OCR stopped short of calling the school’s actions retaliatory.

Even the few Title IX violations OCR found in sexual assault cases did not bring penalties. Instead, they prompted written agreements from colleges to change their ways, or occasionally to provide additional services to an alleged victim.

For instance, the Washington, D.C. office of OCR found that Christian Brothers University had committed a litany of errors in responding to a student who reported a rape, from initially dismissing the case simply because the accused student denied it, to refusing to investigate the alleged victim’s reports that she was being harassed on campus. OCR asked that the university make a number of policy changes, and stop its apparent retaliation against the alleged victim. But there was no punishment for its mistakes.

This is partly because OCR, by regulation, has few tools for punishment short of stripping a college of funding. The lack of available penalties isn’t lost on the office itself; in its 2000 strategic plan, OCR identified a long-term goal of developing “proposals for remedial powers other than complete de-funding of recipients.” Ten years later, its enforcement method has remained the same; it works with colleges to find a resolution to grievances.

Ali, who now heads OCR, said she believes it has sufficient powers — positive as well as punitive — to enforce Title IX.

“Historically, and we are seeing it now, universities come to the table ready to do something about this,” she said. OCR wants to expand remedies beyond the procedural ones favored by the last administration, Ali said, adding she would work with colleges to come up with solutions that might include new student orientation activities, expanded counseling, and additional collaboration between faculty, staff and students to eradicate sexual violence.

“Where there is recalcitrance,” she added, and a school refuses to collaborate with OCR or make the changes it has agreed to, “we will aggressively enforce.”

Critics say that by going easy on colleges, OCR has traditionally failed victims of sexual assault.

“Schools are routinely not up to snuff and face very little action from the federal government to change their ways,” said Security on Campus’s Carter. “You want enough enforcement so that schools are pressured to take sexual assault and rape more seriously. They don’t now.”

Carter believes that it is up to Congress to ask OCR to strictly enforce Title IX. Other advocates said that the office already has the tools it needs to address sexual assault. It can refer cases for litigation by the Justice Department, for instance. But it never has.

“They have this power and they’re not using it,” said Rosenfeld, the Harvard law professor. She believes Title IX is vital to ensuring gender equity in education, and has been inadequately enforced in sexual assault cases. “Rescinding federal funds is a huge stick that OCR could use against schools, and instead they use this very soft approach.”

Former OCR officials countered that investigations themselves are onerous and costly for colleges, providing a strong incentive to avoid them. The office works most effectively through positive means like educational seminars and conferences, they said, and by working quietly with schools once investigations are initiated.

C. Todd Jones, a high-level official at OCR for more than four years of President George W. Bush’s administration, said that when pushing colleges to change their policies, taking an adversarial stance could be counter-productive.

“One of the ways to avoid being stonewalled is to act collaboratively with [schools],” said Jones, who served as OCR’s deputy assistant secretary for enforcement, among other roles. “To work with them, to say, ‘Yes, your change is a good thing.’”

Rosenfeld calls that position “irresponsible law enforcement,” likening it to a cop who avoids making an arrest for fear of what the person in handcuffs may think.

Critics said that OCR’s preference for working behind the scenes takes away yet another stick.

“When a school doesn’t fear getting sanctions, it fears embarrassment or shame,” said victims rights lawyer Wendy Murphy. But schools don’t fear anything from OCR, she said. “They don’t write their rulings as if there’s even shame to be had.”

Murphy filed a complaint against Harvard in 2002 that led to a change in its sexual assault policy, but there was no finding of a violation by OCR — a result she said sent the wrong message to other administrators. “If you were a school,” she asked. “Why would you treat a victim fairly?”

A months-long process

The University of Wisconsin at Madison did not grant interviews with any of the administrators involved in investigating or responding to Dunn’s civil rights complaint. Kevin Helmkamp, the current associate dean of students, was the only university staff member who was made available for an interview — but not about the case. He bristled at the idea sometimes espoused by advocates that simply being investigated by OCR was an indication that the school had done something wrong. “OCR’s letter to the university identified no required changes to our process nor any wrongdoing on the university’s part,” he added in an e-mail.

Indeed, the OCR letter finds that the nine-month process was justified.

First, a criminal investigation stood in the way, the letter notes. A university dean told OCR that “it was not unusual … to delay their interviews when a student also elected to file a criminal complaint.” OCR accepted that answer, though its own guidance, issued in the waning days of the Clinton administration, stated that “police investigations or reports … do not relieve the school of its duty to respond promptly and effectively.”

In this case, a campus police detective asked to do the initial interview with the alleged attacker still enrolled at the university — then took two months to do it. Another delay arose when the dean assigned by the university to investigate Dunn’s case was replaced twice — once after Dunn complained that the dean’s accusatory manner pushed her to tears and caused her to fail an exam. (The school disputed that, saying the dean was simply doing her job as an investigator.)

All the while, the alleged attacker, a religious and classical studies major, continued to row on the crew team that Dunn had felt forced to leave.

“My parents are Harvard attorneys,” Dunn said he told her at a November 2005 party. “You won’t win.”

The athlete’s aggression toward his alleged victim at that party led its hosts to discuss asking him to leave, one of them recalled years later. The accused student’s belligerence seemed to Dunn to clearly be a reaction to her report. But OCR found that since Dunn had initiated the contact at that party (a point she disputes), there was “insufficient evidence to establish that the University subjected [her] to a sexually hostile environment.”

Dunn disputed many of the points made by university staff members — everything from dates she says they had wrong to conversations they may have misinterpreted or failed to mention. Her version of events, including promises from staff members that the investigation would soon conclude, appears to be corroborated by many of the e-mails she provided to the Center. But OCR consistently took the university’s word over hers.

Purple, the former Security On Campus, Inc. advocate who wrote Dunn’s appeal, said she was surprised by OCR’s findings in the case. The lengthy delay in investigating Dunn’s report, she added, seemed to be an obvious violation of Title IX requirements that schools respond in a reasonable timeframe. “I don’t think they were really justified in coming to that conclusion,” she said.

OCR’s sole concession to Dunn’s complaint was a determination that the University of Wisconsin had no established timeline for a prompt investigation, one of Title IX’s most fundamental requirements. In a footnote on page 14 of its finding letter, OCR recommended a policy revision, and stated that it had provided the university with “technical assistance” in order to achieve it.

Technical assistance is OCR’s term for seminars, classes, conferences, private phone calls and other efforts intended to train educators on their civil rights responsibilities. These programs depend on the good will of university administrators. Even OCR critics agree that they can be an extremely effective tool.

But by OCR’s own account, technical assistance — along with its ability to investigate complaints — has taken a hit in the last decade, as the Office’s budget has been stretched.

In fiscal year 2009, OCR had 582 full-time staffers — fewer than at any time since its creation. And it received 6,364 complaints, an increase of 27 percent since 2002.

“OCR is challenged in its ability to execute its law enforcement activities,” said an administration budget request last year. Investigations were taking longer, it noted. And the Office’s “capacity to deliver technical assistance, which is labor intensive but the best means of preventing civil rights violations, is at risk.”

The Obama administration has promised to give OCR a boost, and the president’s fiscal year 2011 budget request calls for full-time staff to inch up to 614 by next year. “In recent years, this office has not been as aggressive as it should be,” Secretary of Education Arne Duncan said in a speech in January. “But that is about to change.”

Ali said her Office will direct more attention toward technical assistance and outreach to universities on the issue of sexual assault, despite a budget that remains tight.

Back at the University of Wisconsin at Madison, though, it is unclear whether the “technical assistance” referred to in OCR’s letter ever took place.

To date, the university’s policy makes no mention of any time frame for investigations — for good reason, Helmkamp said. “It is very difficult to predict how long it would take, particularly with complex cases,” he said. “And we do want to be thorough.”

Without instruction from OCR staffers, colleges depend more heavily on public guidance and on private consultants to decipher signals from court cases and OCR determinations. But critics say these signals are often confusing.

On Jan.19, 2001, the last day of the Clinton administration, OCR issued its most recent sexual harassment guidance, a single document with specific recommendations on how best to prevent and respond to sexual harassment and assault in educational settings. It is that guidance that says, for instance, police investigations do not relieve a school of its obligation to investigate.

But C. Todd Jones, the former Bush administration OCR official, said the guidance lacked an adequate public comment period and was shelved immediately after the 2001 inauguration. He called it “not more official than a brochure,” citing “legal analysis errors” and “unsubstantiated conclusions.” Practitioners in the field, though, said they were unaware the guidance was not in effect.

To Carter, the campus safety advocate, the ex-Bush administration official’s statement confirms a long-held suspicion that OCR was not applying its own published guidance in its analysis of complaints. But it does nothing to clarify confusion over what OCR actually recommends.

“OCR does not tell the schools what’s expected of them,” said Carter. “There are not clear-cut instructions … of exactly what they have to do in a sexual assault case. And that is essential.”

The Office plans to issue new guidance on schools’ Title IX responsibilities as they relate to sexual violence, said Ali, in coming months.

Something to fear: private lawsuits

Colleges have another good reason to look to OCR for more guidance: Some courts have taken an increasingly aggressive stance against institutions which ignore acts of sexual violence on their campuses.

Since the Supreme Court’s 1999 decision that schools could be held liable for sexual assault by students, a number of landmark cases filed by alleged victims have resulted in huge settlements.

In December 2007, the University of Colorado paid $2.85 million to settle a high-profile lawsuit filed by two students who alleged they were raped by football players and recruits. The university’s coaches and administrators were accused of facilitating a culture of sexual violence by athletes.

Baine Kerr, the lawyer who represented CU student Lisa Simpson in that case, took on Arizona State University in a similar case. In January 2009, the Arizona Board of Regents paid $850,000 to settle the lawsuit.

Private lawsuits like these have put colleges on notice in a way that government enforcement has not, say lawyers and scholars. “Whether or not schools care when the Office of Civil Rights calls,” said Ariela Migdal, an attorney at the ACLU Women’s Rights Project, which wrote an amicus brief in the CU case, “if I were a school administrator, I would care if someone like Baine Kerr were to call me.”

Some argue that civil lawsuits have effectively negated the need for much government enforcement of Title IX in rape cases. “If a woman’s been raped, and the allegation is that the university violated Title IX, there’s no reason to spend your time filing an OCR complaint,” said Jones, the former OCR official. “Go down to the federal courthouse, file a lawsuit and get money. Why waste your time with OCR?”

But advocates like Carter — who has helped students do both — vehemently disagree, arguing that the expense of lawsuits is simply not within the grasp of most students. And Supreme Court decisions in the late 1990s set the bar for private action in a Title IX case at an explicitly higher level than in agency enforcement. To win damages in a private lawsuit, a student must prove that a college had actual knowledge of sexual harassment or assault, and showed “deliberate indifference.”

That makes civil actions appropriate in only the most egregious situations — a case of a serial rapist who is known but ignored by a university, for instance, or a college that has no sexual assault policy at all.

“That’s a far cry from most cases, where there is some process, but it’s flawed,” says Carter.

A new role for OCR?

OCR’s enforcement of Title IX in sexual assault cases has long been weak, say victim rights advocates. Some are hoping the Obama administration will encourage OCR to more forcefully take colleges and universities to task in cases like Dunn’s — a role Ali said her office is ready to adopt.

“Sadly, I have heard those same kinds of stories and anecdotes,” said Ali, when told of complaints that her office simply signs off on universities’ decisions. “What I can commit to as a newly appointed assistant secretary for civil rights is that we are a rubber stamp for no one.”

Calling sexual violence an “epidemic” in the nation’s schools, Ali said that the Department of Education would partner with other agencies to address it.

OCR is also working with its general counsel to make more of its investigations publicly accessible, Ali said, adding that it is now concluding two reviews into universities’ handling of sexual assault. OCR launched the two investigations during the Bush administration, she said, without an underlying complaint, and it plans to initiate more reviews in coming years. She said the office will also educate colleges on their responsibilities to give students the means to complain.

Dunn, for her part, didn’t even read OCR’s decision for months after she received it. It was enough to know the office had decided against her. Later, she read through it and marked all the times that the OCR investigator had, in her view, taken the school’s word over hers. The experience left Dunn, now a schoolteacher in Chicago, pessimistic about the prospects for future victims — at the University of Wisconsin and at other colleges.

“The message they are sending to victims,” Dunn said, “is that sexual assault is not something they take seriously.”